Kristensen v. Greatbatch et al
MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED: Defendants' Joint Motion to Dismiss or Alternatively for Summary Judgment 5 is GRANTED and this matter is DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Chief Judge Michael J. Davis on 9/28/12. (GRR)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MEMORANDUM OF LAW & ORDER
Civil File No. 11-3318 (MJD/TNL)
GREATBATCH, KIMBERLY BRIGGS,
and LISA RAMBOL,
Hildania Kristensen, pro se.
Gina K. Janeiro and Sara G. Sidwell, Jackson Lewis LLP, Counsel for Defendants.
This matter is before the Court on Defendants’ Joint Motion to Dismiss or
Alternatively for Summary Judgment. [Docket No. 5] The Court heard oral
argument on September 14, 2012. Because Plaintiff has failed to exhaust
administrative remedies and fails to state a claim upon which relief may be
granted, the Court grants Defendants’ motion to dismiss.
Plaintiff Hildania Kristensen began working for Enpath Medical, Inc.
(“Enpath”) as a Principal Quality Engineer in September 2007. (Compl. at 6 ¶
10(2); Compl., Ex. 1 at 6 of 17.) Kristensen was promoted within a few months
and received positive performance reviews and feedback. (Compl. at 6 ¶ 10(2).)
Defendant Greatbatch acquired Enpath in 2007. (Id. at 7.) Also in approximately
2007, Greatbatch acquired Quan Emerteq, a company in Blaine, Minnesota. (Id.
at 3 ¶ 4, 7.) Defendant Kimberly Briggs, then Director of Regulatory Affairs and
Quality for Greatbatch, was Kristensen’s supervisor and provided a March 2008
performance review of Kristensen stating that Kristensen was meeting or
exceeding expectations. (Compl. at 2 ¶ 2; Compl., Ex. 1 at 12 of 17; Compl. at 6 ¶
Kristensen asserts that Greatbatch discriminated against her between
December 2007 and June 2008. (Compl. at 4 ¶ 5.) She asserts that Greatbatch,
Briggs, and Defendant Lisa Rambol treated similarly situated employees not in
the protected class more favorably. (Compl. at 7 ¶ 10(4).) Plaintiff asserts that
she was unlawfully terminated. (Id. at 6 ¶ 10(3).)
Specifically, Plaintiff alleges discrimination based on race, color, and
national origin because in December 2007, an unidentified R&D Manager “made
discriminatory and demeaning comments regarding Hispanic Professionals on
the Cordis team.” (Compl. at 7 ¶ 10(4)). Someone stated that Hispanics were
“e[r]ratic” and “emotionally charge[d]” “with unreasonable demands.” (Id.)
Someone also made derogatory comments about persons from the Netherlands.
Kristensen also alleges retaliation based on the following facts:
Rambol and upper management supported harassment of people of color.
(Id. at 7 ¶ 10(4).)
Four employees of color approached Kristensen and said that they felt
discriminated against and feared losing their jobs. (Id.) In May 2008, Kristensen
spoke to her manager and to human resources representative, Vicky Moenig,
about the employees’ complaints. (Id.)
After the merger, Greatbatch forced an African-American receptionist into
attrition and replaced that individual with a white male. (Id. at 8 ¶ 10(4).)
An African-American technician in R&D with more experience was forced
to work on the manufacturing floor. (Id.) Kristensen provided her direct report
with time off to study for a certification exam, but another manager forced his
direct report, who was African-American, to work overtime. Kristensen’s direct
report passed the certification exam but the African-American individual did not
Also, an Asian female technician was forced to commute to Blaine and
Plymouth although she lived south of Burnsville, Minnesota. (Id.) Kristensen
came to her defense. (Id.)
An Asian warehouse technician with dark skin asked to be on Kristensen’s
team because he thought management was abusing him and discriminating
against him. (Id.)
“Rambol made it clear that there was only room for beautiful white
people, I want to clean up Greatbatch from all these ugly diversity.” (Id.)
On March 31, 2009, Kristensen filed a Charge of Discrimination (“Charge”)
with the Equal Employment Opportunity Commission (“EEOC”). (Janeiro Decl.,
Ex. 1.) In her Charge, Kristensen checked the box indicating that she was
bringing the Charge under Title VII of the Civil Rights Act and checked “race”
and “national origin” for the “circumstances of alleged discrimination.” (Id.)
I was employed by the Respondent from September 26, 2007 until I
was discharged on September 4, 2008. Before being discharged, my
supervisor Kimberly Briggs, slammed doors in my face and placed
me on a performance-improvement-plan in August 2008 after falsely
accusing me of mistreating employees.
RESPONDENT’S REASONS FOR ADVERSE ACTION: I was
told, “Things were not working out.”
I believe that I was discriminated against because of my race/Black,
and my national origin/Hispanic Dominican Republic, in violation of
Title VII of the Civil Rights Act of 1964, as amended.
On August 12, 2011, the EEOC dismissed Plaintiff’s Charge and issued a
Right to Sue Notice. (Compl., Ex. 1 at 1 of 17.)
On November 10, 2011, Kristensen filed a pro se Complaint in this Court
against Defendants Greatbatch, Kimberly Briggs, and Lisa Rambol. The
Complaint alleges employment discrimination under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”); employment discrimination
under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”);
and a common law claim for defamation. The Title VII claim is based on race,
“mixed Hispanic American, African American, Native Caribbean American”;
color, “dark skin”; national origin, “Dominican Republic”; and retaliation.
(Compl. at 6 ¶ 10(1).) The basis for the ADA claim is not provided in the
Complaint, beyond that there was “[l]ack of [r]ecognition and support for
[Plaintiff’s] disability.” (Id. at 6 ¶ 10(3).) Finally, the defamation claim was
based on defamation of character. (Id. at 6 ¶ 10(3), 4 ¶ 8(h).) Plaintiff generally
asserts the following adverse actions: termination of employment; failure to
accommodate her disability; having terms and conditions of employment
different than those of similar employees, and retaliation. (Id. at 4 ¶ 8.)
Plaintiff had not served Briggs or Rambol with a Summons and
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may
move the Court to dismiss a claim if, on the pleadings, a party has failed to state
a claim upon which relief may be granted. In reviewing a motion to dismiss, the
Court takes all facts alleged in the complaint to be true. Zutz v. Nelson, 601 F.3d
842, 848 (8th Cir. 2010).
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Thus, although a complaint need not include
detailed factual allegations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.
Id. (citations omitted).
In deciding a motion to dismiss, the Court considers “the complaint,
matters of public record, orders, materials embraced by the complaint, and
exhibits attached to the complaint.” PureChoice, Inc. v. Macke, Civil No. 071290, 2007 WL 2023568, at *5 (D. Minn. July 10, 2007) (citing Porous Media Corp.
v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)).
Service of Process
As an initial matter, Defendants assert that the Complaint must be
dismissed against all three Defendants because Briggs and Rambol have not been
served and Greatbatch was not served until more than 120 days after filing the
Complaint. See Fed. R. Civ. P. 4(m). The Court denies this request because good
cause exists to extend the time for service. Moreover, as the Court will later
explain, the Complaint will be dismissed with prejudice for failure to state a
claim upon which relief may be granted and failure to exhaust administrative
Plaintiff is pro se and in forma pauperis. She is relying upon the United
States Marshals Service to effectuate service. As to Greatbatch, Plaintiff provided
the correct information to the Marshals in a timely manner. She will not be
penalized for the late service upon Greatbatch. See Moore v. Jackson, 123 F.3d
1082, 1085–86 (8th Cir. 1997) (holding that when a prisoner is granted leave to
proceed in forma pauperis and provides “the information necessary to identify
the defendant, the marshal’s failure to effect service is automatically good cause
within the meaning of [Rule 4(m)]”) (citation omitted).
Similarly, there is no indication that Plaintiff is at fault for the failure to
serve Rambol; the Marshals Service has unsuccessfully attempted to serve
Rambol multiple times. Additionally, the information from the Marshals Service
indicates that Rambol may be attempting to evade service of process. [Docket
No. 11] The Court concludes that, at this time, good cause exists for extending
the time for Plaintiff to serve Rambol.
Finally, as to Defendant Briggs, the Marshals Service has attempted to
serve Briggs at the address provided by Plaintiff, but was told that Briggs does
not work at that address. [Docket No. 11] Plaintiff claims that she has evidence
that Briggs can, in fact, be found at that address. At this point, the Court
concludes that Plaintiff has shown good cause to extend the time to serve Briggs.
Individual Liability Under Title VII and ADA
The Court dismisses the Title VII and ADA claims against Briggs and
Rambol because the statutes do not provide for individual liability. See Roark v.
City of Hazen, Ark., 189 F.3d 758, 761 (8th Cir. 1999) (holding no individual
liability under Title VII); Lenhardt v. Basic Inst. of Tech., Inc., 55 F.3d 377, 381
(8th Cir. 1995) (same); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th
Cir. 1999) (holding no individual liability under Title II of the ADA and noting
that three circuits “have held that there is no liability under Title I against
individuals who do not otherwise qualify as ‘employers’ under the statutory
definition”); Ebersole v. Novo Nordisk, Inc., No. 1:11cv25 SNLJ, 2011 WL
6115655, at *1 (E.D. Mo. Dec. 8, 2011) (holding no individual liability under ADA
because “the ADA’s definition of ‘employer’ is practically identical to the
definition of ‘employer’ in two other federal statutes that address discrimination:
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 630(b), and
Title VII, 42 U.S.C. § 2000e(b) [and] [i]t is well-settled in the Eighth Circuit that
individuals are not subject to individual liability under Title VII of the Civil
Rights Act of 1964, and longstanding precedent in this Court also holds that
individuals are not liable under the ADEA”) (citations omitted). The dismissal of
these claims is with prejudice because Plaintiff is legally barred from reasserting
these claims against Briggs or Rambol.
Exhaustion of Administrative Remedies
“Title VII establishes an administrative procedure which a complaining
employee must follow before filing a lawsuit in federal court.” Williams v. Little
Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994) (citation omitted). “To
exhaust administrative remedies an individual must: (1) timely file a charge of
discrimination with the EEOC setting forth the facts and nature of the charge and
(2) receive notice of the right to sue.” Id. (citing 42 U.S.C. § 2000e–5(b), (c), (e)).
“Once an individual receives notice of the right to sue, she has 90 days in which
to file suit.” Id. (citing 42 U.S.C. § 2000e–5(f)(1)). The ADA incorporates by
reference the exhaustion requirement from Title VII. See 42 U.S.C. § 12117(a); 42
U.S.C. § 2000e-5.
The charge must be sufficiently precise to identify the parties, and to
describe generally the action or practices complained of. If the
EEOC gives the individual a right-to-sue letter following the EEOC
investigation, the charge limits the scope of the subsequent civil
action because the plaintiff may [only] seek relief for any
discrimination that grows out of or is like or reasonably related to
the substance of the allegations in the administrative charge.
Permitting claims to be brought in court which are outside the scope
of the EEOC charge would circumscribe the EEOC’s investigatory
and conciliatory role and deprive the charged party of notice of the
Cottrill v. MFA, Inc., 443 F.3d 629, 634 (8th Cir. 2006) (citations omitted).
Plaintiff filed her Charge with the EEOC on March 13, 2009. The Charge
only alleges race and national origin discrimination under Title VII. Plaintiff
cannot amend her Charge to add addition grounds for discrimination because
the period during which Plaintiff could file a charge long ago expired.
Color Discrimination Claim
The Court concludes that, although Plaintiff did not check the box for color
discrimination on her EEOC Charge, that claim is reasonably related to the race
discrimination claim asserted by Plaintiff.
Plaintiff’s Charge provides no indication of a claim based on disability or
the ADA. Plaintiff notes that she answered “yes” to the question “Do you have a
disability?” on page 1 of the EEOC Questionnaire, in the section entitled
“Personal Information,” and she wrote “partial – back pain.” [Docket No. 22-7]
However, Plaintiff did not check “Disability” on page 2, where the Questionnaire
asks the basis for her claim of employment discrimination. Nor did she fill out
questions 8 -10, which direct the claimant to respond only if she is “claiming
discrimination based on disability,” and which ask questions regarding the
nature of the disability and any request for accommodation. The Questionnaire
provides no indication that Plaintiff alleges discrimination based on disability.
Plaintiff has failed to exhaust her administrative remedies on her ADA claim and
the statute of limitations for that claim has run. Therefore, it is dismissed with
Plaintiff’s EEOC Charge provides no indication that she asserts a claim for
retaliation. The claim for retaliation is not reasonably related to the claims for
race and national origin discrimination that were properly exhausted. See
Russell v. TG Missouri Corp., 340 F.3d 735, 747-48 (8th Cir. 2003). The narrative
provided by Plaintiff in her EEOC Charge provides no notice of a retaliation
Plaintiff argues that her retaliation claim is apparent from the EEOC
Questionnaire. However, when Plaintiff has filed a timely EEOC Charge, as is
the case here, the Questionnaire cannot be used to satisfy the requirement that
she exhaust administrative remedies for other claims. See Teekasingh v.
Medtronic, Inc., Civil No. 11-3336 (SRN/JJG), 2012 WL 2244792, at *3 (D. Minn.
June 15, 2012) (holding that EEOC Questionnaire referencing retaliation was
insufficient to exhaust administrative remedies when retaliation was not
mentioned in the EEOC charge). Under Eighth Circuit precedent, “an intake
questionnaire that was not submitted under oath did not constitute a valid
charge under Title VII for purposes of the statute of limitations until it was later
signed under oath.” Lawrence v. Cooper Communities, Inc., 132 F.3d 447, 450
(8th Cir. 1998). “[I]n Title VII cases, intake questionnaires do not satisfy the
statutory requirements for a charge because they are not verified.” Id. (citations
omitted). “Permitting claims to be brought in court which are outside the scope
of the EEOC charge would circumscribe the EEOC’s investigatory and
conciliatory role and deprive the charged party of notice of the charge.” Cottrill,
443 F.3d at 634 (citations omitted).
Plaintiff has failed to exhaust administrative remedies on her Title VII
retaliation claim; this claim must be dismissed. Because the statute of limitations
has run on Plaintiff’s retaliation claim, the dismissal of this claim is with
Failure to State a Claim
In order for a statement to be considered defamatory it must be
communicated to someone other than the plaintiff, it must be false,
and it must tend to harm the plaintiff’s reputation and to lower him
in the estimation of the community. . . . Truth, however, is a
complete defense, and true statements, however disparaging, are not
Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980) (citations
“Minnesota law has generally required that in defamation suits, the
defamatory matter be set out verbatim.” Moreno v. Crookston Times Printing
Co., 610 N.W.2d 321, 326 (Minn. 2000). “Minnesota law requires that a claim for
defamation must be pled with a certain degree of specificity. At a minimum, the
plaintiff must allege who made the allegedly libelous statements, to whom they
were made, and where.” Pope v. ESA Servs., Inc., 406 F.3d 1001, 1011 (8th Cir.
2005) (citation omitted), abrogated on other grounds by Torgerson v. City of
Rochester, 643 F.3d 1031 (8th Cir. 2011) (en banc). If the complaint fails to
include this information, “the proper course is dismissal.” Id.
Here, the Complaint does not identify any statements that could form the
basis of a defamation claim. Nor does Plaintiff plead who made the statements
or how the statements harmed her. The only statement attributed to any
Defendant is the allegation that Rambol “made it clear there was only room for
beautiful white people, I want to clean up the place from all these ugly
diversity.” (Compl. at 8 ¶ 10(4).) Even if this is a direct quote from Rambol,
there are no allegations that the statement was published to a third party or that
Plaintiff suffered any reputational harm as a result.
Furthermore, under Minnesota law, a plaintiff has two years from the date
of the alleged defamatory statement to commence a defamation action. Minn.
Stat. § 541.07, subd. 1. Plaintiff commenced this lawsuit on November 10, 2011.
The Complaint does not state when the allegedly defamatory statement was
made, by whom it was made, or what the statement was. However, from the
context of the Complaint, the statement was made during Plaintiff’s employment
with Greatbatch. Plaintiff’s employment with Greatbatch ended on September 4,
2008, more than three years before she filed this Complaint. The statute of
limitations bars Plaintiff’s defamation claim based on statements made during
her employment, and, so, that claim is dismissed with prejudice.
At oral argument, Plaintiff asked that the dismissal of her defamation
claim be without prejudice because she may want to reassert a defamation claim
if Defendants continue to defame her. Defamation claims based on future
statements by Defendants are not affected by this dismissal.
Title VII Claims
To establish a prima facie case for race discrimination, a plaintiff
must show (1) he is a member of a protected class, (2) he met his
employer’s legitimate expectations, (3) he suffered an adverse
employment action, and (4) the circumstances give rise to an
inference of discrimination (for example, similarly situated
employees outside the protected class were treated differently).
Gibson v. Am. Greetings Corp., 670 F.3d 844, 853-54 (8th Cir. 2012) (citation
A Title VII plaintiff need not plead a prima facie case of discrimination in
order to survive a motion to dismiss. See Swierkiewicz v. Sorema N. A., 534 U.S.
506, 511 (2002). However, the plaintiff must provide fair notice of the claim and
the grounds upon which it rests. Id. at 512.
Kristensen does not plead sufficient facts to provide fair notice of her
claims and the grounds upon which they rest. For example, she alleges no
adverse employment action, nor that similarly situated employees were treated
more favorably. Plaintiff asserts that the discriminatory acts occurred between
December 2007and June 2008; however, Plaintiff also asserts that she was
promoted and received positive performance reviews during this time period.
She was not terminated until September 2008. Also, Plaintiff does not plead any
facts to show that she was treated less favorably – only how other employees
were treated. During oral argument, Plaintiff expanded on her allegations
regarding Defendants’ treatment of various employees and other facts regarding
her experience at Greatbatch. However, Plaintiff’s only allegation of a negative
employment action by Defendants that was directed at Plaintiff, arguably based
on race, color, or national origin, was that one of her supervisors complained
about the manner in which Plaintiff ran certain meetings. No material adverse
action is apparent.
The Court has liberally construed Plaintiff’s Complaint and has considered
all of her additional allegations in her briefing and oral argument, and concludes
that Plaintiff fails to state a claim upon which relief may be granted under Title
Leave to Amend the Complaint
Plaintiff requests leave to file an amended complaint to more specifically
state the basis for all remaining claims because she states that she is still seeking
counsel. The Court is sympathetic to Plaintiff’s pro se status. However, this
Complaint was filed almost one year ago. Plaintiff has had the opportunity to
consult with a pro bono attorney from the FBA Pro Se Project. The Court has
reviewed all of Plaintiff’s filings and has listened carefully to Plaintiff’s
presentation during oral argument. Plaintiff has failed to allege any actionable
claim for race, color, or national origin discrimination (or any other claim) and
has not indicated any manner in which she would like to amend her Complaint
that would state an actionable claim. Allowing an amendment would be futile.
Accordingly, based upon the files, records, and proceedings herein, IT IS
Defendants’ Joint Motion to Dismiss or Alternatively for Summary
Judgment [Docket No. 5] is GRANTED and this matter is
DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: September 28, 2012
s/ Michael J. Davis
Michael J. Davis
United States District Court